In-House Counsel

The DOL Q&As issued last week state an employer is under the 500-employee threshold when "at the time your employee's leave is to be taken, you employ fewer than 500 full-time and part-time employees..." Making the threshold determination as of the first day of the employee's leave is a problem for employers whose employee numbers fluctuate above and below this number (500) on a daily basis. It's a problem for the employee wanting to take leave as well as they won't know whether their leave will be paid until the first day of the leave. Under other circumstances the answer might be just to provide paid leave to everyone as if the employer employed less than 500 employees each day; however, employers may end up holding the bag. The IRS or DOL could deny this employer a tax credit or refund for payments made to employees taking leave on days the employer had over 500 employees. It's a conundrum. I suggest making the 500-employee determination once on of April 1, 2020.